Ludwig v. Zoning Hearing Bd. of Earl Tp.

• Decision Date: 19 June 1995
• Citation: 658 A.2d 836
• Parties: Frank LUDWIG, v. The ZONING HEARING BOARD OF EARL TOWNSHIP, Charles, Gloria and Timothy Martin, Appellants.
• Court: Pennsylvania Commonwealth Court

Page 836

658 A.2d 836

Frank LUDWIG, v. The ZONING HEARING BOARD OF EARL TOWNSHIP Charles, Gloria and Timothy Martin, Appellants.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Jan. 27, 1995.

Decided April 27, 1995.

Reargument Denied June 19, 1995.

Matthew J. Creme, Jr., for appellants.

Robert M. Frankhouser, Jr., for appellee.

Before SMITH and KELLEY, JJ., and KELTON, Senior Judge.

KELTON, Senior Judge.

Charles, Gloria and Timothy Martin (Landowners) appeal from the August 16, 1994 order of the Court of Common Pleas of Lancaster County (trial court) reversing the Zoning Hearing Board of Earl Township's (Board's) grant of a variance to Landowners to use their property for a for-profit golf driving range. We reverse.

The critical issue in this case is whether Section 701, subsection 4 of the Township's Zoning Ordinance creates zoning provisions which are not uniform for each class of uses within the Township's rural districts. Landowners assert that subsection improperly excludes a for-profit golf driving range while permitting an identical use if operated by a public or private non -profit agency.

In 1992, Landowners purchased 28.206 acres of rurally zoned property at the southwest corner of Philip and New Holland Roads in Earl Township, Lancaster County, Pennsylvania. Soon thereafter, Landowners requested a variance to use ten to twelve acres of the property as a for-profit golf driving range. On November 22, 1993, the Board denied their request for a variance. (Board's Finding of Fact No. 10, R.R. 127a and Trial Court's Opinion at 1.)

Having already constructed a parking lot for twenty-eight cars on their property, ¹ Landowners in 1994 reapplied for a variance to establish the proposed golf driving range ² and challenged the validity of the ordinance provision requiring a public or non-profit form of ownership. (R.R. 3-5a.) After a February 15, 1994 hearing involving this second variance application, the Board made the following findings regarding the specific aspects of the proposed golf course:

11. The Property contains 28.206 acres and has previously been used as farmland and a meadow.

12. Applicant[s] propose[ ] to utilize ten (10) to twelve (12) acres of the site for a privately operated, commercial, golf driving range.

13. The remaining sixteen (16) to eighteen (18) acres of land would be devoted to farming which is its present use.

14. The tee-off area would be located adjacent to Philip Road and directed towards the southern portion of the Property.

15. The driving range would accommodate twenty-five (25) to thirty (30) people.

....

17. Applicant[s] propose[ ] to erect a 14' x 32' office to be used in conjunction with the driving range which would be placed on skids.

18. Applicant[s] would install mesh fencing along New Holland Road which would be 25' high and which would run from the creek in a southerly direction along New Holland Road for a distance of approximately 720'.

19. The mesh fencing would serve as a barrier to prevent golf balls from escaping on to the roadway.

20. Lighting would be mounted on poles used for the netting and would be directed in a westerly direction away from New Holland Road.

21. The facility would be open from 9 a.m. until 10 p.m. for a period of six (6) to seven (7) months per year and would have two (2) employees.

22. The Property is bordered on the north and east by other lands which are devoted to agricultural use.

23. New Holland Borough is located to the north of the property.

24. The Property is bordered on the west by Tyson Foods, an industrial use.

(Board's Findings of Fact Nos. 11-15 and 17-24, R.R. 127-28a.)

Weighing the testimony and evidence presented, the Board had to consider whether the Landowners merited a variance from the uses permitted in the Township's rural districts. At issue is Section 701 of the Zoning Ordinance of Earl Township, which in pertinent part, provides as follows:

Section 701. PERMITTED USES

1. Farm buildings, farming and agricultural use, provided that any building used for the keeping or raising of livestock or poultry shall be located not less than one hundred (100) feet from any street or other property line.

2. Single family detached dwellings.

3. Woodland or game preserve, wildlife sanctuary, or other conservation purpose.

4. Township use, park, playground or similar non-commercial recreational area owned and operated by a public or private non-profit agency; school; church; cemetery....

(Section 701 of the Zoning Ordinance, R.R. 128a) (emphasis added).

The Board granted the variance, concluding as follows:

2. Section 701(4) of the Zoning Ordinance creates an irrational distinction between profit and non-profit entities which is unrelated to the actual use of the land and which does not serve a legitimate zoning purpose.

3. Applicant[s] [are] entitled to a reasonable use of the property.

4. An application of the literal terms of the Zoning Ordinance creates an unusual hardship on the Property which is unrelated to a legitimate zoning purpose which hardship was not created by the Applicant.

5. The granting of the requested variance will not alter the essential character of the neighborhood or district, nor substantially impair the appropriate use or development of adjacent property nor be detrimental to the public welfare since the land will remain primarily open space.

6. The variance, as authorized, represents the minimum variance that will afford relief.

(Board's Conclusions of Law Nos. 2-6, R.R. 130-31a.)

The trial court reversed the Board's grant of the variance, finding that the Board had improperly substituted its judgment for that of the township supervisors by rejecting the distinctions set forth in Section 701(4) of the Ordinance. The trial court concluded that Landowners should have petitioned the supervisors for either a rezoning or an amendment to the Zoning Ordinance. Landowners filed a timely appeal of the trial court's decision with this Court.

As noted, the primary issue for our review is whether the Board erred in determining that Landowners could operate a for-profit golf driving range in a rural district where the Zoning Ordinance allows recreational uses only where owned and operated by non-profit agencies. Where, as here, the trial court takes no additional evidence, our scope of review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law. McClimans v. Board of Supervisors of Shenango Township, 107 Pa.Commonwealth Ct. 542, 529 A.2d 562 (1987).

Objector Frank Ludwig argues that the Board usurped the legislative function of the township supervisors by questioning the rationality of the profit/non-profit distinction. Thus, he contends that the Board was under an obligation to apply Section 701(4) of the Zoning Ordinance as written.

Without question, the promulgation of a zoning ordinance is a legislative act. Also, in light of the legislative nature of zoning ordinances, our Supreme Court has held that "zoning boards and the courts must not impose their concept of what the zoning ordinance should be, but rather their function is only to enforce the zoning ordinance in accordance with the applicable law." Kline Zoning Case, 395 Pa. 122, 125, 148 A.2d 915, 916 (1959).

In promulgating a zoning ordinance, however, ordinance legislators are to provide for uniform uses in respective zoning districts pursuant to Section 605 of the Pennsylvania Municipalities Planning Code (MPC) ³, which, in pertinent part, provides as follows:

Where zoning districts are created, all provisions shall be uniform for each class of uses or structures, within each district, except that additional classifications may be made within any district [except for purposes not relevant here].

Thus, although zoning classifications are, in large part, within the respective legislative body's judgment, courts may interfere in the rare cases where it is obvious that a classification lacks a substantial relationship to public health, safety, morals or general welfare. Commercial Properties, Inc. v. Peternel, 418 Pa. 304, 211 A.2d 514 (1965). Accordingly, our question here is whether the Board erred in finding that the profit/non-profit distinction is unrelated to the actual use of the land and does not serve a legitimate zoning purpose.

Earl Township in Section 701...